The offence of use carriage service to menace, harass or offend is a federal/Commonwealth offence meaning it is the exact same offence throughout Australia. In this blog, criminal lawyers Parramatta | AMA Legal explore the elements of the offence, the Courts before which the offence is prosecuted and examine some recent sentence statistics for the offence.
The offence
The Commonwealth offence is contained in section 474.17 Criminal Code Act 1995 (CTH) which carries a maximum penalty of up to 5 years imprisonment.
Carriage service includes any kind of communication platform or technology which is used to communicate. It includes:
- Telephones, text messages,
- Social media apps such as Facebook, WhatsApp, Instagram, TikTok etc
The Court will examine whether the alleged conduct is menacing or offensive in the mind of a reasonable person in all the circumstances of the alleged conduct.
Harassing refers to unwelcome and unwanted conduct, which is usually repeated, although a single conduct could also be harassing depending on the time, circumstances, and contents of such conduct. It may be conduct which annoys or troubles the recipient.
The Court
The offence is an indictable offence which, in NSW, is usually prosecuted in the Local Court. For the offence to be prosecuted in the Local Court in NSW, the Defendant and the prosecutor must consent to such a course.
Statistics
JIRS data accessed by criminal lawyers Parramatta | AMA Legal show that between October 2019 to September 2023, the NSW Local Court sentenced offenders on 1,940 charges of use carriage service to menace, harass or offend with the outcomes being:
| Penalty Type | Total | Percentage % |
| Section 19B Dismissal | 61 | 3.1 |
| Section 19B Recognizance Order | 353 | 18.2 |
| Fine Only | 422 | 21.8 |
| Section 20(1)(a) Recognizance Order | 408 | 21.0 |
| Community Correction Order | 443 | 22.8 |
| Section 20(1)(b) Conditional Release Order | 39 | 2.0 |
| Intensive Correction Order | 87 | 4.5 |
| Imprisonment | 127 | 6.5 |
| Total | 1,940 | 100 |
Criminal defence lawyers Parramatta, AMA Legal suggest the following defences may be applicable to the offence of use carriage service to menace, harass or offend:
- Necessity,
- Duress,
- Sudden or extraordinary emergency.
Necessity
The common law defence of necessity applies when circumstances compel the accused to commit an offence in order to prevent an even greater harm or peril. An example would be where a defendant calls a complainant a dozen times which may be harassing but the defendant does so to warn the complainant of some imminent danger or peril.
Duress
For Commonwealth offences such as use carriage service to menace, harass or offend, the Criminal Code Act 1995 (CTH) provides for the defence of duress at section 10.2 and the defence of sudden or extraordinary emergency at section 10.3.
Use carriage service to menace, harass or offend is a serious offence which is highlighted by the maximum penalty of 5 years imprisonment and the facts that more 11% of offenders were sentenced to a custodial sentence. If you are charged with such an offence, you can contact Criminal solicitors Parramatta .
